dissenting.
[5.] I concur in the judgment of the Court, upon all the points made in this case, except as to the admissibility of the parol evidence. The defendants pleaded in the Court below, that they signed this note as sureties for Mr. King — that under the Act of 1826, they notified the plaintiffs to sue — that they failed to bring suit within three months, and they (defendants) are thereby discharged. The parol evidence was offered to support this plea, and by the presiding Judge, admitted, my associates think, rightfully — I am constrained to believe, wrongfully. I assume that on the face of this note the defendants are not sureties, and that parol evidence *64cannot be admitted, either upon Common Law principles, or by virtue of our own Statutes, to show that they are, and thus let them in to the benefits of the 2d section of the Act of 26th December, 1826 ; became the effect of such testimony would be to add to and vary the written contract between the parties.
I shall not enter at large into the consideration of the vexed question of the admissibility of parol evidence, where there is a written contract, but shall endeavor, briefly, to apply the general rule to the case before me. That general rule is — “ Parol evidence is not admissible to add to, vary, or contradict a written instrument.” I have had occasion to say before, that the application of the rule to negotiable paper, ouglit, in my poor judgment, to be more stringent, than to instruments of almost any other character; for reasons founded in commercial policy. “ The liability of parties to a bill of exchange or promissory note, says Mr. Justice McLean, in Bank of the United, States vs. Dunn, has been fixed on certain principles, which are essential to the credit and circulation of such paper. These principles originated in the convenience of commercial transactions, and cannot now be departed from.” 6 Peters, 58. 4 Ga. Rep. 273. It is the interest of every citizen, whether merchant, agriculturist, artisan, or retired capitalist, that the principles of the Law Merchant remain settled. The rule above stated, is founded on the presumption that when the parties to a contract have reduced it to writing, all previous negotiations and contemporaneous - propositions are merged in the writing. They have with solemnity declared it. The instrument is, with all seriousness, made the evidence of what arc their respective rights and obligations. They send it out into the commercial world to perform its functions, according to the character which the law, sitting in judgment upon the evidence which they have furnished, gives to it; and according- to no other evidence. They have agreed that the writing shall be proof of their act and intention — that it shall be valid and compulsory on them. They thus notify all who may become interested in it, that they are bound by no stipulations beyond its written terms. The policy of the rule is avouched in those inconveniences, which grow out of the various conceptions which different minds may have of the same subject — of the liability of all persons to forgetfulness_of passion — prejudice and perjury. Unwritten contracts are uncertain ; whereas, litera scripta manet.
*65My first proposition is, that parties to written contracts are to he held as contracting in reference to the general law of the land. Thus, where one makes a promissory note, he is to be held as making it, subject to that kind of liability which the law casts upon makers ; and the payee receives it, vested with all the rights which the law gives to payees.
My second proposition is, that where parties have clearly expressed their meaningin writing, and the law gives to such writing a fixed and determinate character, that is to say, fixes the rights and liabilities of the parties on the face of their own instrument, it is a contract which can in no respect be added to, varied, or contradicted by parol evidence. The exposition which the law gives to the writing, is the contract; and that exposition is the rule and measure of the liabilities and rights of the parties. In all such cases, the holder can have nothing, and the maker be bound to nothing, which, according to settled principles, are not deducible from the written instrument, and the application of these settled principles to the instrument, belongs to the Courts.
I apply these propositions to the note in this case. It is in the following words and figures :
$1953t°tu. Monticello, 10th May, 1838.
Ninety days after date, I promise to pay to the order of Mumford & Tyson, at the Bank of St. Marys, one thousand nine hundred and fifty-three dollars and four cents, for value received, in renewal of note, for $1914.
(Signed,) THOMAS BUTLER KING.
MUMFORD & TYSON.
Indorsed, “Mumford & Tyson.”
The suit was brought by the Bank of St. Marys against Mumford & Tyson, not as indorsers, but as makers of this note. The plaintiff sought to hold them liable, as original, unconditional undertakers to pay — the plea and the evidence by parol, to support it, sought to make them sureties for Mr. King, and by the Act of 1826, conditionally liable — that is to say, not liable at all, if upon notice to do so, the plaintiff failed to sue Mr. King within three months.
Now, what is the legal effect of this paper? There is nothing peculiar in it — nothing unknown to the Commercial Law. It varies from the usual mode of making notes, in this, that the parties, being more than one, in its body say ? promise to pay, instead of *66we. Admitting that this is not according to the usual phraseology, yet it is no anomaly in the law. The law is quite familiar with such notes. The use of the singular I instead of the plural we,creates no ambiguity. The judgments of the Courts have given a construction to just such a peculiarity — which judgments are as familiar to the profession, and I have a right to presume, to mercantile men, as any other rule of Commercial Law. Nor is it a thing to be thought strange by lawyers or merchants, that this note is payable to the order of one of the makers, Mumford’ & Tyson, Such things are of every-day occurrence. This is a joint and several negotiable promissory note. Smith’s Mercantile Law, 216, Clark vs. Blackstock, Holt, 474. March vs. Ward, Peake, 130, Lord Galway vs. Mathew, 1 Camp. 403. 10 East, 264. Butler vs. Malissy, 1 Stra. 76. 2 Stra. 819. Cowp. 832. Chitty on Bills, 529. 5 Mass. 358. 1 Hill, N. Y. R. 256.
It is the several promise of Thomas Butler King to pay ; it is also the several promise of Mumford. & Tyson to pay. It is farther, the joint promise of Thomas Butler King and Mumford & Tyson, that they will pay.
The legal effect of the note is to make Mumford & Tyson original and unconditional undertakers to pay to their own order, or to whomsoever might become the legal holder, the sum of money specified in it. Having, by indorsement, ordered its payment to the Bank of St. Marys, they are unconditionally liable to that Bank, as makers. Just as much liable as if Thomas Butler King’s name was not on the note. This is the position which they have-elected to take — the position which the law assigns them, and to which it will hold them. It can give to them no appellation but that of makers, with just that kind of liability which the Law Merchant, construing this note, fixes upon them. That liability — the liability of the maker of a note — is not contingent or conditional f it is subject to no limitation — it is immediate and direct.
The meaning of the parties upon the face of the note is clear; it can mean nothing else than that Mumford & Tyson undertook, as makers, to pay the holder so much money. No distortion or torturing of its terms can give to it any other signification. The relation of principal and surety is not suggested, or even shadowed forth in any word or phrase in it; nor can it be implied by the application of any rule or doctrine of the law.
My next proposition is, such being the contract, that evidence-*67that they were in fast sureties, and thereby giving to them the benefits of the Act of 1826, varies that contract. The contract, we have seen, according to the note, is, that they will pay unconditionally, to the holder, the sum of money stipulated to be paid. Let us see what the contract will be, with the addition of the parol evidence. I remark just here, that I do not now consider whether sureties in fact (yet who are not so by the written contract) are embraced in the Act of 1826. I shall look to that hereafter. I am now considering whether, at Common Law, parol evidence is admissible to add to, vary, or contradict this note. To determine this question, it is material to note, that evidence that these parties were in fact sureties, would be, by itself, in the case made, harmless; and that it derives its inadmissible quality from the fact, ' that by it alone, they are admitted to the benefits of that Act. The Act of 1826 empowers indorsers and sureties to notify holders to sue their principals, and if, being notified, they fail to sue within three months, the sureties are discharged. Conceding, then, that if this evidence is admitted, it would show such a contract as would make the Act of 1826 applicable to it; I say the effect of that evidence is to vary the written contract, and is, therefore, inadmissible. "What would the contract be, as amended by the parol evidence ? It would be to this effect — “"We, Mumford & Tyson, are liable to you, the St. Marys Bank, it is true, as joint and several promisors with Mr. King ; yet, inasmuch as we are his sureties, if upon our notice to you to sue him within three months, you fail to bring suit loithin that time, we are not liable at all” — a contract of liability, upon condition, that being notified so to do, the holder of the note shall within three months sue the principal. Is not this adding new terms to the contract as we find it in writing ? Whereas, by the writing, they are unconditionally liable; now, by parol, they are in a certain event, not to be liable at all. Whereas, by the writing, they are not entitled to the privilege of giving the notice and requiring the holder to sue, at the peril of their discharge ; now, by parol, they are admitted to the benefits of such a privilege. It does not weaken the principle to say that the discharge is not a necessary result — that it depends upon the diligence of the holder. If the discharge may result, it is a variation of the written contract. The advantage to them, although a contingent one, is what they are not entitled to by the written contract.
*68Again, liow does the new contract, as set up by parol, affect the holder ? It prescribes to him a law of limitation as to his right of suit against King, the principal, to which, in a Court of Law, he was not subject by the written contract. By the writing, there is no time within which he is bound to sue King. By the parol contract, he is compelled to sue within three months after notice, at the peril of losing all recourse upon the sureties. It is no answer to say, that if he loses his recourse against the sureties, it is the result of his own laches. The contract, by parol, imposes upon him a burden which does not rest upon him by his written contract, for which the sureties did not stipulate, and against which he, in all probability, would have stipulated; indeed, against which, as we shall see, he did in this case stipulate.
The Legislature, I know, may act upon remedies, but it cannot, even through remedies, impair any of the obligations of a contract. And if it be said that setting up this new contract by parol, only affects the holder’s remedy upon his written contract, I reply that it so affects it, as to vary, fundamentally, as I have endeavored to show, the written contract itself. It may be said that the right of the holder to sue all the parties to this note, in case of notice, is perfect up to the expiration of the three months; and, therefore, the evidence does not affect the written contract in its first formation. If at any time it affects it, the impression on it goes back to its origin, and goes forward to its final extinction. How does it vary the principle, that plaintiff’s disability, and defendant’s additional privilege, is developed subsequently to the date of the note ? That disability and that privilege is claimed alone upon the ground that the contract, in the beginning, was what they seek to make it by parol. But there is a very simple view of this matter, which, to my mind, is conclusive. If this evidence does not vary the written contract, why is it tendered ? What is there to be proven, but that which does not there appear ? If it does not vary it, why not rest upon the writing? No — it is palpable that the defence goes upon the assumption, that the defendant’s rights must be adjudicated according — not to the written contract — but the parol contract.
Now, it is true that the authorities touching the admission of parol evidence, in such a case as this, are conflicting; A case sustaining fully the judgment of this Court, was read from 4 N. H. Reps, the doctrine of which case, seems to have received some ap*69proval in New York. Other cases were also relied upon in the argument, as directly or indirectly warranting the admission of the evidence. On the contrary, it will be seen that there are cases and Jurists of great authority in our States, denying its admissibility. I think, however, that I may with safety say, that the weight of authority in England denies it. The Common Law is binding upon this Court. The decisions of the States are only so far binding, as they are founded in sound reason and professional learning. Again, I think I may with safety say, that this Court, in several decisions, has adjudicated this very question. That is to say, has clearly settled the principles which control it. The authority of this Court, I shall undertake to show, is against the admission of the evidence. I concede that in a Court of Equity, this defence is available, and that there the evidence may be admitted. Strenuously did the learned counsel insist, that if admissible in a Court of Equity, it ought to be admitted here — urging, that it is unreasonable to drive a party into Chancery, when a Court of Law is competent to give relief. Were I disposed to admit the policy of this view, I would not dare to do what no Judge can do, without usurping the powers of the Legislature — break down the barriers which separate the jurisdiction of the Courts of Law and Equity. I shall await the action of the Legislature.
Mr. Chitty lays down the rule applicable to this case, in the following words: “It seems now settled, that verbal evidence is not admissible to contradict or vary an absolute engagement to pay money on the face of a bill or note; although, as between the original parties, evidence may be adduced to establish a defence on the ground of a total want of consideration, failure of it or illegality.” Chitty on Bills, 141.
The invariably conceded rule of the Common Law is here stated. It is, that you cannot contradict or vary an absolute engagement to pay money on the face of a bill or note. The exceptions are stated, to wit: want of consideration, total failure and illegality. Thele are some other exceptions — one for example, mentioned by Lord Ellenborough in Hoare vs. Graham, 3 Camp. 57, to wit: that the note was indorsed to plaintiff as a trust. All the exceptions, however, go to the consideration, the illegality, the delivery of the note, or to frauds between the parties. So run the English decisions. Before adverting to them, I submit whether there is not, upon the face of this note, an absolute engagement to *70pay money, and whether any one of the exceptions covers this case. The engagement is absolute, and the defence here is notpretended to rest on any one of the exceptions indicated in the rule. This defence is planted upon an engagement different from, and contemporaneous with, the written absolute engagement to be established by verbal evidence. Let us see how similar defences have been repudiated by the ablest men of the British Bench. The case of Hoare vs. Graham, decided by Lord Ellenborough, is a leading authority. There the defendant’s indorsers sought to prove by parol, that the condition upon which they indorsed, was that the note at maturity should be renewed.
Lord Ellenborough said — “ I do not think I can admit evidence of this sort. What is to become of bills of exchange and promissory notes, if they are to be cut down by a secret agreement that they are not to be put in suit. The parol condition is quite inconsistent with the written instrument........There may, after the bill is drawn, be a binding promise, for a valuable consideration, to renew it when due, but if the promise is contemporaneous with the drawing of the bill, the law will not enforce it. This would be incorporating with a written contract an incongruous parol condition.” 3 Camp. 57.
In Free and another vs. Hawkins, it was proposed to prove by parol, that it was the understanding between the parties, that the defendant, who was sued as indorser, indorsed upon condition, that he should not be liable until after the estates of the maker were sold. The evidence was rejected. Dallas, J. said — “One thing is to be observed; if such were meant to be the understanding, it ought to have been expressed on the instrument; but it is not expressed....... The effect of the evidence tendered is to vary the note in question, and to control its legal operation; and such evidence. I think is inadmissible.”
Park, J. 'said. — “ It has been observed in favor of the plaintiffs, that they sought not, by the evidence tendered at the trial, to contradict the note, or limit the written contract; but if I issue a promissory note, payable at two months, and enter into a parol agreement that the note shall not be put in suit till the end of five years, or till the uncertain period of the sale of an estate, can it be contended that such a parol agreement does not contradict and limit the written contract into which I have entered?”
Burrough, J. said — “ It would be of the most dangerous import, *71if evidence of this sort might be let in to out down, written instruments.” 8 Taunton, 92.
In Woodbridge vs. Spooner, the action was brought against the representative of the maker of a promissory note. At the trial, the defendant offered to prove that the note, which was on its face payable on demand, was agreed, at the time of making it, to be payable only at the decease of the maker. The Court rejected the evidence.
Abbott, G. J. said — “ The object of the testimony was to show that a promissory note, which in terms appeared to be payable on demand, was agreed not to be payable till after the decease of the maker. Now, it is contrary to the rules of law to, admit extrinsic evidence to show that the intention of a party executing a written instrument is different from that apparent on the face of the instrument itself.” 3 Bar. & Ald. 233.
The object of the defendants in the cause before this Court, was to show that their intention was different from that apparent on the face of the note. The intention apparent on the note is to pay absolutely; the intention to be shown by parol, is to pay as sureties, that is, to pay upon condition.
In Rawson vs. Walker, Lord Ellenborough, in an action by the payee against the maker of a note, refused to admit evidence of an agreement between plaintiff and defendant, that the defendant should not be called on until after a final dividend should be made of a bankrupt’s estate. 1 Starkie’s Rep. 301. See also, Campbell vs. Hodgson, 1 Gow. R. 74. Bowerbank vs. Monterio, 4 Taunt. 846. Hogg vs. Smith, 1 Taunt. 347. Skin. 54. Phil. Evid. 2 edit. 433, Stark, on Evid. part 2, 279. Ridout vs. Briston, 1 Tyrw. 84. 1 Cro. & J. 231. Chitty, Jr. 1518. Mosely vs. Hanford, 10 B. & C. 729.
These decisions appear to me to be conclusive as to the rule of the Common Law; and the principle settled by them, seems to be conclusive as to this case. The great principle settled is, that an engagement to pay money absolutely, on note or bill, cannot be superseded, modified or limited by parol evidence. It is proper to say, that the two leading cases of Hoare vs. Graham and Free vs. Hawkins, axe not even so strong as the case I am now reviewing. The actions in those cases were against indorsers — here the suit is against makers ; and this case is not open to the application of a doctrine which has found its way into a few American books, but *72not sanctioned in England, that an indorsement is an inchoate contract, and therefore, subject to explanation by parol.
Pitman on Principal and Surety, meets the proposition I am laboring to establish, in the following explicit terms — terms which contemplate the case made upon this record. “In order, however, that the surety may avail himself of a defence at Law, it must appear upon the face of the instrument that he is such surety; for if he is bound as principal, he cannot at Law aver, by pleading, that he is bound as surety, though in Equity, parol evidence is admissible to show who is principal and who surety. Thus, if two persons are jointly or jointly and severally bound to the creditor, the one as principal and the other as surety, and both appear on the instrument as principals, such surety obligor, when time has been given to the principal debtor, or to the representatives of such principal debtor, may have relief in a Court of Equity, though he could not at Law.” Pitman on Principal and Surety, 125, 126.
This very direct and unequivocal elementary authority is supported by a series of decisions. In Rees vs. Benington, Lord Lough-borough declares the rule thus: “Where a man is surety at Law for the debt of another, payable at a given day, if the obligee defeats the condition of the bond, he discharges the surety. When they are bound jointly and severally, the surety cannot aver by pleading, that he is bound as surety. But if he could establish that at L aw, the principle at Law is, that he has an interest in the condition, and if the period is extended, that totally-defeats the condition, and the consequence is, the surety is released from his engagement.” 2 Vesey, Jr. 542. His Lordship had previously said, that it was theform of the security which forces these cases into Equity. True, if by the paper, a party is surety, he has relief at Law; if by the form of the paper, he is not a surety, although surety in fact, he must go into E quity. That is the doctrine settled by Lord Lough-borough, and which I am now trying to establish.
The case of paramount control on this question, however, is that of Fentum vs. Pocock, tried in 1813, before Mansfield, C. J. Heath and Chambre, Justices. It is paramount, not only because it meets the question here, but because in it, Mansfield, C. J. reviews and overrules the two cases of Laxton vs. Peat and Collott vs. Haigh, decided by Lord Ellenborough at Nisi Prius, which are the starting points of the contrary doctrine. In Kerrison vs. Cook, (3 Camp. 362,) Gibbs, J. also expressed strong doubts of the *73doctrine ruled in Laxton vs. Peat. In Fentum vs. Pocock, the question was, whether an acceptor of a hill for accommodation was discharged by an arrangement with the drawer, by the holder, for payment by instalments. The defence was put upon the ground that the acceptance, being for accommodation, the accept or was surety to the drawer. The defence was rejected, Mansfield, C. J. saying, “He who accepts a bill, whether for value or to serve a friend, makes himself, in all events, liable as acceptor, and nothing can discharge him but payment or release.” The proof was, that the acceptance was for accommodation. The decision went upon the ground, that on the instrument the acceptor was liable, nt all events, as principal. That was the legal import of the written evidence. Mansfield, C. J. speaking of the case of Laxton vs. Peat, remarks, '“ When I first saw the case in Campbell, I was in the same state with Mr. Justice Gibbs, and doubted a great deal whether it could be law.
“ The case of Collott vs. Haigh must be considered as not a separate decision, but as resting on the authority of the former. It is utterly impossible for any Judge, whatever his learning and ability may be, to decide at once rightly upon any point that comes before him at Nisi Prim, and whoever looks through Campbell’s Reports, will be greatly surprised to see, among such an immense number of questions, many of them of the most important kind, Which came before that noble and learned Jfidge; not that there are mistakes, but that he is, in by far the most of the causes, so wonderfully right, beyond the proportion of any other Judges. But in this case we think we are bound to differ from him, and to hold that it is impossible for us to consider the acceptor of an accommodation bill in the light of a surety for the payment by the drawer,” &c. 5 Taunt. 195, 196. Thus Laxlon vs. Peat and Collott vs. Haigh were overruled.
The case of Price vs. Edmunds, in its facts is very analagous to this case. The payee of a joint and several note brought suit against one of the makers, and the defendant proved that he was a mere surety, and that plaintiff had agreed with the principal to indulge by payment in instalments. He claimed, that thereby he was discharged. Counsel for the defendant, whilst relying upon the cases of Laxton vs. Peat, &c. was interrupted by Bayley, J. with this significant interrogatory: “Does not a party, by signing a note as joint maker, render himself subject to all the liabili*74ties of joint maker?” By Parke, J. as follows: “Can a contract between the payee and maker of a note be shown by extrinsic evidence, to be different from what it purports to be on the face of the note itself? Here, on the face of the note, the contract purports to be an absolute contract by the defendant for the payment of a sum of money. The effect of the parol evidence was to show that it was conditional.” These queries sufficiently indicate the mind of the Court. It did not find it necessary to determine the question, whether the extrinsic evidence was or not admissible, the judgment turning upon another point. However, Parke, J. in giving his opinion, said, “As to the other point, I think that the decision in Fentum vs. Pocock, where it was held, that the acceptor of an accommodation bill was not discharged by giving time to the drawer, was good sense and good law." 10 Barn. & Cress. 578.
The next case which I refer to, is that, of Dary vs. Prendergrass. It was there decided, that in an action on a bond against a surety, it is no defence, that time has been given by parol agreement to the principal. Abbot, C. J. said, “ The ground of my opinion in this case is that general rule of the Common Law, which requires that the obligation created by an instrument under seal, shall be discharged by force of an instrument of equal validity. The operation of that rule is indeed sometimes such, as to make it imperative upon a Court of Equity to interpose. and grant relief, but it by no means follows that the rule of Law is to be broken doyn, because a Court, having jurisdiction of another kind, will interpose where there is a particular case, in which the rule of Law will operate harshly. There is a great objection to a Court of Law taking upon itself to act as a Court of Equity, because they have not the means of doing that full ample justice which the particular case may require. We ought not, therefore, to interpose in a matter which seems peculiarly to belong to the jurisdiction of a Court of Equity. If a parol agreement is entered into to give time to the parties, supposing it not to be the case of a surety, but simply the case of a common bond, conditioned for the payment of money at a certain day, it will not prevent the party from proceeding at Law immediately, whatever the consideration of the delay may be.” 5 Barn. & Ald. 187.
In Brittain & Wilson vs. Webb, Bayley, J. holds the following language: “Besides, the plaintiffs are not at liberty to set up a *75parol contract inconsistent with a written contract, and that would be the effect of enabling them to recover on this declaration against the defendant. For it appears by the bill of exchange, which was in writing, that the defendant was entitled to have the contents of the bill paid to him, whereas, the effect of the agreement to be set up, is to show that it never was intended to be paid to him, &c.” 1 Barn. & Cress. 483. To the same effect is Lewis vs. Jones, 4 B. & C. 506.
The last case that I shall refer to from the English books, is Ash-bee vs. Pidduck, in which it is decided, that where three persons entered into a joint bond, and it did not appear, either on the bond or condition, that two of them were sureties for the other, a release given by the obligee to the representatives of one of the deceased obligors, was no answer in behalf of the surviving obligor. Lord Abinger, C. B. said, “How does it appear that these defendants are sureties ? It does not appear from the condition of the bond that they were so; and you cannot, as against the obligee, show that they were.” 1 Mees. & Weis. 568.
The American authorities very generally sustain the foregoing rules of the Common Law. I refer to a few of them :
“Where a note issigned, says Mr. Story, by two persons, written thus: We promise, and signed A B principal, and C D surety, it is still the joint note of both. And if it were written I promise, and signed in the same manner, it would be the joint and several note of both. For the language designating the principal and surety does not change the rights of the payee or subsequent holder, but merely ascertains the relation of the makers to each other, and operates as notice of that relation to the other parties thereto.” Story on Prom. Notes, sects. 57, 58.
Mr. Story, in his Treatise on Bills, speaks more directly to the point, as follows : “So it seems that where several persons are jointly and severally liable upon a contract, the giving of time to one, or proceeding in a suit against one, even to judgment, but without satisfaction, will be no discharge to the other. Indeed it has been thought that it will make no difference in such a case at Law, whatever might be the case in Equity — upon which some doubt may be entertained — that one of the joint parties to a bill is in fact a surety for the other; at all events, if he is not stated to be so on the face of the bill. For under such circumstances, as to the holder, he may and should be treated as a joint principal, with*76out any reference to his relation to the other joint contractor,” &c. Story on Bills, sects. 430, 432.
The case of Hunt vs. Adams decides the principle extracted above from Judge Story’s text. In that case, the note was signed by A, and C wrote underneath — “I acknowledge myself holden as surety for the payment of the demand of the above note, witness, my hand;” signed C. In an action on this note, A and C were held to be joint promisors, and not only joint promisors, but original promisors. Such was ruled to be the legal effect, not only of that note, but also of a note written I promise to pay, and signed by A principal, and C surety. Parsons, C. J. said: “ The defendant is an original party to the contract as well as Chaplin. The contract, in its legal construction, is a promise made, as well by the defendant as Chaplin, for value received, to pay fifteen hundred dollars to the plaintiff’s intestate. To this promise, Chaplin has signed as principal, and defendant as surety. This mode of signing is an accommodation between the promisors, by which the defendant is entitled, if he pay the note, to indemnity from Chaplin, but as to the intestate, they must be considered as joint and several promisors. The legal effect of a note in this form is not different from a note in the form of “ for value received, I promise,” &c. and signed by one with the word principal annexed to his name, and by another with the word surety thus annexed ; or if' the form of the note had been, “ for value received, I, A B, as principal, and I, C D, as surety, promise to pay,” &c. This last form is not uncommon, and the promise has always been holden to be made by each as original promisor.” 5 Mass. 360, 361.
This case determines the legal effect of the note upon which the action was brought. Subsequently, the same case in principle, but upon another of the notes between the same parties, came before the Supreme Court of Massachusetts. In the latter case, the defendant, who was the surety on a note described in the reference to the case in 5 Mass, offered to prove by parol, an agreement between the principal and the payee, that he, the defendant, was to be holden to pay, only on condition that the principal could not pay. The Court, recognizing the construction as to the legal effect of the note, which had been previously put upon it, and which I have above stated, rejected the evidence, because it was “ incompetent to control the legal effect of a written contract.”
Sewell, J. delivering the judgment of the Court, said, among *77other things — “ When a contract has been stated in a writing, assented to and signed by the parties concerned, and that continues in being, and under the control of the party relying upon it, evidence of other parol agreements to explain or vary the written contract, would be a rejection of that evidence, which is necessarily the best.
“ In the case at bar, if the motion for the defendant should prevail, a conditional and collateral contract might be sustained, by a parol stipulation for a contract in writing, which is absolute, and by which the defendant engages as surety for Chaplin. The construction to be given of this note, as written, has been settled by the former decision of this Court, to be the same as if the note had expressed a joint and several promise of Chaplin and the defendant. The defendant became responsible to Bennett, immediately and directly, by the legal operation of the written words which he had subscribed.” 7 Mass. 518, ’19, ’20.
How nearly in its facts, and how closely in principle, does not this case approach to the one at this bar l A surety having engaged in writing to pay, absolutely, was not permitted to interfere with the legal effect of his own written contract, by proving a conditional contract.
In the Bank of the United States vs. Dunn, an indorser proposed to prove that the payment of the note had been guarantied by the maker, by certain securities, and that the indorsement was matter of form, and therefore he was not liable. The Supreme Court rejected the evidence, because it varied the legal effect of the contract of indorsement. 6 Peters, 51. Also, 9 Wheat. 587. 3 Dall. 415.
In Spring vs. Lovett, in an action by the payee against the maker, on a promissory note, the defendant was not permitted to prove a parol agreement, that upon his executing a deed of real estate to the plaintiff, the note was to be given up. 11 Pick. 417.
So in Farham vs. Ingham, evidence that a note, absolute on its face, was payable on condition, was refused. 5 Ver. R. 114. See Low vs. Treadwell, 3 Fairf. 441. 5 Ver. R. 152. 1 Minor Ala. R. 357. 6 Mass. 519. Palmer vs. Grant, 4 Conn. R. 389. Rawston vs. Parr, 3 Russ. R. 424. Baker vs. Briggs, 8 Pick. 122. 19 Ib. 260. 24 Ibid 64. Foster vs. Jolly, 1 Cromp. Mee. & R. 703. Thompson vs. Ketchum, 8 Johns. R. 146. 5 Porter, 505.
The majority of the cases which I have referred to, go upon *78the ground of a parol agreement. It is not pretended in this case, that there was any agreement between the defendants and The Bank of St. Marys, that they should be held and bound as sureties ; all that is protended, is that the Bank had notice at the time of mailing the note, of the relation between them and Mr. King, of principal and sureties. Thus, at best, amounting only to an equitable defence. So far from agreeing to be held bound by the obligations which, through the Act of 1826, might grow out of that relation, it is expressly proven, that it was the usage of the Bank to require indorsers to sign as makers, and that the defendants were notified of that usage. The Bank thus stipulated against the very defence set up. The defendants contracted with knowledge of that usage, and are bound by it. The usage was proven to be to require indorsers to sign as makers, as well as indorsers. The object of this usage, I must infer, was to secure all the legal advantages which such signature would give. For example, the advantage of liability, without demand and notice— primary and original liability, as makers, irrespective of the relation of principal and sureties. As indorsers, the Bank knew (such is the legal inference) that they would be entitled to the benefits of the Act of 1826. To shut out those benefits, it required them to become makers on the note. The fact that they were required to sign as makers, rebuts the inference, that it consented to become bound by the legal consequences that might result to it from the relation of principal and sureties.
The rule of the Common Law, as to the admissibility of parol evidence, has been adopted by this Court, and has been applied in more than one case, strikingly analogous to this. It seems to me, that if any one principle has been more firmly settled by this Court than another, it is that for which I am now contending. As early as the first term, held at Cassville, after our organization, this doctrine underwent the review of this Court, in Rogers vs. Atkinson, et al.
Lumpkin, J. in that case, said — “ The burden of the argument of counsel for the defendant in error, has been to establish the rule, that parol evidence cannot be received, to add to, contradict or materially vary a written agreement; and that the instrument itself must be considered as containing the true understanding between the parties, and as furnishing better evidence thereof, than any which can be supplied by parol. We subscribe to the doctrine in all *79its amplitude — and a series of adjudications in England and in this country, in the State and National Courts, have firmly and uniformly upheld the principle, and placed it beyond the reach of successful attack.” 1 Kelly, 18. The Judge then proceeds to discuss the rule, and to enumerate exceptions, in its application to different forms of written contracts. No exception which he recognizes, embraces this case.
The case of Stubbs vs. Goodall, adjudicates the very principle upon which I insist. That was an action by the indorsee against the indorser of a note, which was not payable at a chartered Bank, but simply to the order of the indorser. The defendant offered to prove at the trial, that it was the intention and agreement of the parties, that the note should be negotiated at a chartered Bank. This Court held the evidence inadmissible. The ground upon which the Court went, is developed in the following words of Kumphin, J. who delivered the judgment. Commenting upon an extract from the text of Mr. Story, on promissory notes, the Judge says — “We believe it to be a departure from that rule of Law, which precludes the admission of parol evidence, to contradict or substantially vary the legal import of a written agreement, than which none is better settled or more salutary in its application to contracts.” Again, the Judge quotes from the decision of a case in 3 N. H. R. the following proposition, to-wit: “ But it seems also to be well settled, that parol evidence cannot be received, to vary or control the settled legal import of a commercial instrument,” (the very doctrine for which I contend,) and gives to it a very emphatic indorsement, in the following words : “ We entirely concur in this firm and manly adherence to a rule of Law, which has done more to prevent frauds and perjuries, than the Statute passed professedly for that object. Better, by far, to rest upon broad principles, capable of being comprehendedby the humblest capacity, and especially when they have proved so beneficent in their results, than to be forever frittering them away by nice and attenuated distinctions, which elude even the most subtle.” 4 Ga. R. 106. The case of Stubbs and Goodall is distinguishable from the present case, in one particular; and that particular makes this a stronger case than that. It is that in that case, the defendant was an indorser ; in this, the defendants are makers. In that case, the admissibility of the evidence, in the argument, was put upon the ground that a blank indorsement is *80an inchoate contract, and is therefore susceptible of explanation by parol; which principle, if it were a sound one, has no relevancy to makers. A brief explanation will show that the principles involved in Stubbs and, Goodall, are the same with those involved in this case. By the Act of 26th Dec. 1826, (Prince, 462,) indorsers upon notes and other instruments are not entitled to demand and notice, unless given for the purpose of negotiation, or intended to be negotiated at any chartered Bank, or unless deposited at any chartered Bank for collection. The note in that case, not appearing on its face, to be payable at a chartered Bank, or appearing to have been intended to be negotiated at a chartered Bank, or to have been deposited there for collection, the defendant, Goodall, was not, upon the face of the note, entitled to notice. By the legal import of his contract, he was not entitled to notice. His engagement to pay as indorser, was by the law of Georgia, an absolute engagement without notice. The payee had stipulated on the note, that he should be liable without notice — he had bound himself, by indorsing a note not payable at Bank, or otherwise appearing to be intended to be negotiated at Bank, to be liable without notice. Now, to let himself into the benefits secured by the proviso of the Act of 1826, that is to say, to place himself in the position of an indorser, entitled to notice by that Act, he offered to prove by parol, that it was the intent and agreement of the parties, that the note should be discounted at Bank. The effect of this evidence was to set up a conditional liability in place of an absolute liability. The legal import of his indorsement was to charge him without notice. By that indorsement his liability did not depend upon notice. By the parol agreement he was to be liable upon condition that he had notice, And how did Goodall seek to change his contract ? By invoking, through the means of a different contract, to be set up by parol, the benefits of the proviso of the Act of 1826 in his favor ; to make thus, that which was absolute, conditional; to secure thus, a right or privilege denied to him by the legal import of his written contract j,. to impose thus, upon the holder of the note, a burden which did not rest upon him, by the written contract, to wit: the burden of giving notice ; to cast upon him a disability, against which, in the note, he had stipulated. Well, in this case',the defendants are seeking to do the same things. By parol, they seek to invoke the aid of the Act of 1826 in favor of sureties; *81To secure to themselves privileges or rights, to which, by their written contract, they are not entitled; To cast a burden, to-wit: the burden of suing the maker within three months, upon the holder, under which he did not rest, and against which he had stipulated, .both in the written contract, and by the usage of the Bank. In short, to vary the legal import ox their written contract, by making what was an absolute engagement to pay money, a conditional engagement to pay money. If there is a difference in the principles of the two cases, I am unable to see it. Upon similar principles, and upon the decision in Stubbs vs. Goodall, was determined the case of Collins vs. Everett, (4 Ga. R. 266,) and a later case, not yet reported, argued at Decatur in August, 1848.
My learned associates, however, place the judgment of this Court, in part, upon the Acts of 1826, in favor of sureties. If I could agree with them, which I cannot do, in their construction of those Acts, still my dissent must needs be made, because they rest their judgment, not upon the Statutes alone, but upon general principles also. What remains to me, is to show, if I can, that this question is in no way dependent upon the Acts, or either of them, of 1826.
There are two Statutes which are claimed to have some relevancy to this case. One passed on the 20th Dec. 1826, and the other on the 26th of Dec. 1826. Both of these Acts relate to sureties. The former is entitled, “ An Act to define the liability of securities on appeal, on stay of execution, and for the protection of bail on recognizance, bond, note or other contract.” The whole of its enactments have a single, definite and unmistakeable object, and that is to afford to sureties a summary mode at Law, of remuneration out of their principal. The rights of the payees of notes, or other holders, are not intended to be affected by it. So far from this being the case, the object of the Act is expressed, and that is, in every class of the cases enumerated, to enable sureties to control judgments against their principals for reimbursement. By the 5th section of the Act of 20th Dec. 1826, sureties on bonds, notes or other contracts, are authorized on the trial, to make special defence; and in case it shall appear to the Court, that one or more of the defendants are sureties only, and not interested in the consideration of the contract sued on, verdict and judgment shall be entered accordingly ; and the surety is clothed *82with such privileges as, in a previous section, are conferred upon other sureties. The privilege referred to is, “ the use and control of the execution, for the purpose of proceeding against his principal” The defence in this section given to the surety, is not against the plaintiff in the action, hut against theprincipal, who may be sued with the surety. This is demonstrated by the proviso to this section, which is in these words : “ Provided the plaintiff shall in no case be delayed by any dispute which may arise between the defendants, but the Court shall decide the issues, and the verdict which may have been finally rendered on the issues between the defendants, shall relate back to the time of the verdict and judgment in favor of the plaintiff.” The litigation, the issues made, are between the defendants ; the plaintiff’ is not to be delayed. Plis rights remain not only intact, but are expressly protected in this Act, Then what relation has it, can it have, to a contest between the holder of the note and the maker ? Surely none, not even the most remote.
The Act of 26th Dec, 1826, has two sections. The first relates to the liability of indorsers on notes, &c. and is not pretended to have any application to the point in discussion. The second section is mainly relied upon as controlling it, and is as follows: " Any security or indorser may, whenever he thinks proper, after the note or instrument becomes due, require the holder to proceed to collect the same, and if he shall not proceed to do so within three months, the indorser or surety shall be no longer liable.” Prince, 461, 462. The position is, that inasmuch as this Act authorizes any surety to give notice, and upon failure of the holder to proceed to collect within three months, discharges him, that any surety who is so in fact, although not a surety on the written contract, may in a Court of Law, plead his suretyship and his notice, and prove it by parol. Now, I am not prepared to say, that any party to a note, who is in fact a surety, is not entitled to the benefit of this Act, whether he appear to be so or not, on the face of the written contract. What I assert is, that unless it appear on the written contract, that he is a surety, he is not entitled to the benefit of the Act in a Court of Law. He may go into Equity and be there relieved, because the rules of proceeding and the law, as settled, governing that jurisdiction, will permit him to have relief there. He cannot come here for relief, because he cannot get it until the rule of ev*83Idence, which I hope I have shown is so well established, is abrogated by the Legislature. The Legislature, in granting to him the privilege, without prescribing the manner of his remedy, must be, according to the established rules of statutory construction, considered as remitting him to that forum where the remedy is competent, and not to that where, by existing laws, it is not competent. If it Is apparent .on a written contract, by the signature or by recital, that a party is a surety, then this Act is available to him, in a Court of Law, because there the establishment of his right-would not be dependent upon parol evidence, and the exercise of it would not be precluded by any rule of Law. I am not at liberty to infer, from the fact that the Legislature has authorized any surety to discharge himself by notice, that it intended to annul, so far as applicable to all instruments to which there might be parties holding to others the relation of sureties, a rule of evidence founded in the clearest reason, and the most manifestly sound policy. If indeed the surety had not a remedy in Equity, I should, in that event, be more inclined to give him one here. I should be disposed to imply a repeal of the rules of evidence which stand in his way, rather than make the Act of the Legislature nugatory. But sitting, as we now sit, in a Court of Law, and construing this Act in the light of Law rules, I must believe that it applies to such sureties on notes and bills, as are so on their face. And as in this case the defendants are not on this note sureties, but unconditional promisors, it does nqt,admit them to the defence set up, or authorize the admission of the evidence.
When I say that these defendants would be entitled to relief in a Court of Equity, I mean to say that there, their defence might be set up and proven ; but I do not mean to say, that in this case, it would be successful; that would depend upon the case made on the trial. The facts being ascertained, Chancery would no doubt relieve, if the facts would authorize relief. The whole difficulty here is, that the facts which would authorize relief, do not appear upon the contract which the parties have made, and cannot in a Court of Law be ascertained.